Petitioner subsequently filed the present habeas corpus petition on four grounds, first, that the panel of jurors represented one ethnic group, second, that a conflict of interest existed between a juror and the prosecution, third, that the prosecution committed misconduct, and lastly, that the judge coerced the jury to come to a guilty verdict.

II. DISCUSSION

A. The "In Custody" Requirement

In addition to addressing the individual claims by Petitioner, the state contends that Petitioner is not entitled to relief under 28 U.S.C. § 2254 because she is on probation and not in custody. It is axiomatic that a District Court can entertain an application for a writ of habeas corpus only on the ground that Petitioner is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a). Petitioner was sentenced to five years probation. The State contends that since the Petitioner is not incarcerated, she is not sufficiently "in custody" to be eligible for relief under § 2254.

The Supreme Court of the United States, in Jones v. Cunningham, 371 U.S. 236, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963), held that a Petitioner for a writ of habeas corpus currently on parole met the "in custody" requirement of the habeas corpus statute. The Court held, "what matters is that [parole] significantly restrain[s] Petitioner's liberty to do those things which in this country free men are entitled to do. Such restraints are enough to invoke the help of the Great Writ." Id. at 243. Probation, like parole, subjects the person to certain restrictions that limits their freedom, which other citizens are not subject to. Also, both parole and probation put the person at risk of future incarceration. In fact, the only reported Second Circuit case to address the issue found no distinction between parole and probation for purposes of the "in custody" requirement. United States v. Shelly, 430 F.2d 215, 216 n.3 (1970). Hence, this Court finds that there is "no material difference between probation and parole in applying the 'in custody' requirement of § 2254." Barry v. Brower, 864 F.2d 294, 296 (3d Cir. 1988).

A Petitioner for a writ of habeas corpus must have "exhausted the remedies available in the courts of the state, or [shown] that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner," 28 U.S.C. § 2254, before a federal court can grant habeas corpus relief. See Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 190-191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). Moreover, the exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the highest state court. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam); Daye, 696 F.2d at 191. To have fairly presented a federal claim to the state courts, the Petitioner must have informed the state court of both the factual and legal premises of the claim asserted in the federal court. See Picard, 404 U.S. at 276-277; Daye, 696 F.2d at 191-94.

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